1Students etc. deemed to be workers and their deemed employers

1 Students etc. deemed to be workers and their deemed employers (1) Each of the following is deemed to be a worker to the extent specified— (a) a student at a school within the meaning of Division 1 of Part 5.4 of the **Education and Training Reform Act 2006** while employed under a work experience arrangement or a structured workplace learning arrangement under that Part; (b) a student who is in an accredited senior secondary course (within the meaning of section 4.1.1 of the **Education and Training Reform Act 2006**)— Sch. 1 cl. 1(1)(b)(i) amended by No. 7/2015 s. 15. (i) at a TAFE institute or a dual sector university; or (ii) provided by a person or body registered under section 4.3.10 of that Act with respect to that course— while employed under a work experience arrangement or a structured workplace learning arrangement under Part 5.4 of that Act; (c) a student employed under an agreement or arrangement referred to in section 6.1.21 of the **Education and Training Reform Act 2006**, while so employed; (d) a post-secondary student of a TAFE provider within the meaning of Division 2 of Part 5.4 of the **Education and Training Reform Act 2006** while employed under a practical placement agreement under that Part; (e) a student employed under an agreement or arrangement referred to in section 6.1.23, 6.1.24 or 6.1.25 of the **Education and Training Reform Act 2006**, while so employed; (f) an apprentice— (i) within the meaning of the **Education and Training Reform Act 2006** while employed under an approved training scheme within the meaning of Part 5.5 of that Act; or (ii) employed under a contract of apprenticeship, while so employed; (g) a person who is a participant in a declared training program, while so participating. (2) In relation to— (a) a student who is deemed to be a worker under subclause (1)(a), (b), (c), (d) or (e)— Sch. 1 cl. 1(2)(a)(i) amended by No. 10/2022 s. 85. (i) the Department of Education and Training is deemed to be the employer of that student in respect of the employment under the arrangement or agreement; and (ii) the amount paid or payable to the student for services rendered under the agreement or arrangement is deemed to be remuneration; (b) an apprentice referred to in subclause (1)(f)— (i) the person who enters into the approved training scheme or contract of apprenticeship with the apprentice is deemed to be the employer of the apprentice; and (ii) the amount paid or payable to the apprentice under the approved training scheme or contract of apprenticeship is deemed to be remuneration; (c) a person referred to in subclause (1)(g), the provider of the declared training program is deemed to be the employer of that person. 2 Declared training programs (1) The Governor in Council may, by Order in Council published in the Government Gazette, declare a training program provided by a person or body specified in the Order in Council that includes the provision of workplace based training to be a declared training program. (2) The Governor in Council may, by Order in Council published in the Government Gazette, specify, in relation to a declared training program— (a) a class of payments; or (b) a training allowance— payable to participants in that declared training program. (3) A payment of a class or a training allowance, specified in an Order in Council under subclause (2) is deemed to be remuneration paid or payable in respect of a participant in the training program to which that Order in Council applies. 3 Persons attending certain employment programs deemed to be workers If a person (not being a worker within the meaning of any other provision of this Part) is injured while attending an employment program provided or arranged by the Authority— (a) for the purposes of this Act— (i) the person is deemed to be a worker; and (ii) the Authority is deemed to be the employer of the person; and (b) for the purposes of Divisions 1 and 2 of Part 5, the person's pre-injury average weekly earnings are deemed to be the pre-injury average weekly earnings of the person as calculated for the purposes of this Act in relation to the injury suffered by that person by reason of which the person is attending the employment program as indexed in accordance with this Act. 4 Co-operatives—deemed workers and employers (1) A person— Sch. 1 cl. 4(1)(a) amended by No. 44/2014 s. 25. (a) who is a secretary of a co-operative housing society within the meaning of the **Co‑operative Housing Societies Act 1958** or a co-operative within the meaning of the Co-operatives National Law (Victoria); and (b) who is entitled, as secretary, to be paid more than $400 per annum (other than in respect of expenses)— is deemed to be a worker. (2) The co-operative, or co-operative society, is deemed to be the employer of that person. (3) The amount (other than in respect of expenses) paid or payable to that person by the employer is deemed to be remuneration. 5 Door to door sellers If— (a) a person (the ***seller***) is engaged under a contract or arrangement (not being a contract of employment with an employer)— (i) to sell goods door to door; or (ii) to party plan on-sell goods; or (iii) to sell services ancillary to a sale or on‑sale of goods referred to in subparagraph (i) or (ii); and (b) the Authority determines that the contract or arrangement was entered into with an intention of directly or indirectly avoiding or evading the payment of premium by any person— (c) the seller is deemed to be a worker; and (d) the person who engaged the seller is deemed to be the employer of the seller; and (e) the amount paid or payable to the seller by the person who engaged the seller is deemed to be remuneration. 6 Timber contractors (1) If a person who, in the course of, or for the purposes of, a trade or business carried on by the person (***principal***), enters into a timber contract with one or more individuals (***timber contractor***)— (a) each timber contractor is deemed to be a worker; and (b) the principal is deemed to be the employer of each timber contractor. (2) Subclause (1) does not apply if— (a) the timber contractor— (i) subcontracts the timber contract in its entirety; or (ii) does not perform personally any work under the contract and employs or engages persons to perform all the work under the timber contract; or (b) where the timber contractor is a partnership of 2 or more individuals, no part of the work under the timber contract is performed personally by a member of the partnership. (3) In relation to a timber contractor who is deemed to be a worker, the amount payable by the principal to the timber contractor, less the applicable prescribed percentage (if any), is deemed to be remuneration. (4) In this clause, ***timber contract*** means a contract under which one or more individuals agree with another person (***principal*)** to do all or any of the following— (a) fell trees and deliver the timber to the principal; (b) cut firewood and deliver the firewood to the principal; (c) fell trees or cut scrub on land of which the principal is the occupier; (d) clear stumps or logs from land of which the principal is the occupier; (e) remove stumps or logs from land, whether by loading them onto a vehicle or otherwise. 7 Drivers carrying passengers for reward (1) A person engaged in driving a motor vehicle is deemed to be a worker if the person (***driver***)— (a) has the use of a motor vehicle under a contract of bailment entered into with another person (the ***operator***) (other than a bona fide contract for the purchase of the vehicle); and (b) uses the motor vehicle to carry passengers for reward; and (c) is required under the contract to make payments to the operator for the use of the motor vehicle. Sch. 1 cl. 7(2) amended by No. 63/2017 s. 21(Sch. 1 item 12). (2) A reference in subclause (1) to a contract of bailment includes a reference to a driver agreement within the meaning of Division 1 of Part 6 of the **Commercial Passenger Vehicle Industry Act 2017**. (3) If, under subclause (1), a driver is a worker— (a) the operator is deemed to be the employer of the driver; and (b) the amount received by the driver for carrying passengers, less the amount paid or payable to the operator for the use of the motor vehicle, is deemed to be remuneration. 8 Owner drivers carrying goods for reward (1) Subject to this clause, an individual (***owner-driver***) is deemed to be a worker if, under a contract (not being a contract of employment) entered into by the individual with another person (***principal***), the owner-driver drives a motor vehicle, of which he or she is the owner, mainly for the purposes of providing transport services to the principal. (2) This clause does not apply in respect of an individual who is an owner-driver if the Authority determines that, in providing transport services to the principal, the owner-driver is carrying on an independent trade or business. (3) If, under subclause (1), an owner-driver is deemed to be a worker— (a) the principal is deemed to be the employer of the owner-driver; and (b) the amount paid or payable by the principal for transport services to the owner-driver, less the percentage deduction (if any) applicable to owner-drivers and specified in guidelines made by the Authority under subclause (4), is deemed to be remuneration. (4) The Authority may make guidelines as to— (a) the circumstances in which it may determine that an individual, in providing transport services to a principal, is carrying on an independent trade or business; and (b) the determination of a percentage deduction for the purposes of subclause (3)(b). (5) The Authority must ensure that guidelines made under subclause (4) are published and are generally available. (6) In this clause— ***owner***, in relation to a motor vehicle, has the same meaning as in the **Road Safety Act 1986**; ***transport services*** means the service of transporting and delivering goods. 9 Contractors (1) This clause applies if— (a) an entity (the ***principal***), in the course of, and for the purposes of, a trade or business carried on by the entity, enters into a contractual arrangement with another entity (the ***contractor***) for the provision by the contractor of services (not being transport services within the meaning of clause 8) to the principal for reward in respect of a relevant period; and (b) the provision of the services by the contractor under the contractual arrangement is not ancillary to the provision of materials or equipment by the contractor to the principal under the contractual arrangement; and (c) at least 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual (***the individual***) being— (i) the contractor; or (ii) if the contractor is a partnership, an individual member of the partnership; or (iii) if the contractor is a body corporate—a member, director, shareholder or employee of the body corporate; or (iv) if the contractor is the trustee of a trust—a person who may benefit under that trust or is an employee of the trustee; and (d) the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period. (2) This clause does not apply in respect of a contractual arrangement if the Authority determines that, in providing services to the principal, the contractor is carrying on an independent trade or business. (3) The Authority may make guidelines as to the circumstances in which it may determine that a contractor, in providing services to a principal, is carrying on an independent trade or business. (4) The Authority must ensure that guidelines made under subclause (3) are published and are generally available. (5) If subclause (1) applies— (a) the individual is deemed to be a worker in respect of the relevant period; and (b) the principal is deemed to be the employer of the individual in respect of the relevant period; and (c) the total amount paid or payable by the principal to the contractor under the contractual arrangement, less— (i) the applicable prescribed percentage (if any); or (ii) if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour— is deemed to be remuneration. (6) In this clause— ***principal*** includes a group, or one or more members of a group, within the meaning of section 431; Sch. 1 cl. 9(6) def. of *relevant period* amended by No. 10/2022 s. 86. ***relevant period***, in relation to services provided under a contractual arrangement referred to in subclause (1), means— (a) the financial year in which those services are, or are to be, provided; or (b) if those services are, or are to be, provided in 2 or more consecutive financial years— (i) the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or (ii) the 12 month period ending on the date on which those services cease, or are to cease, to be provided; ***services*** includes results (whether goods or services) of work performed. 10 Remuneration and contractual arrangements (a) a person (the ***principal***) enters into a contract with a body corporate (the ***contractor****)* under which the contractor agrees to provide services to the principal; and (b) the contractor engages an individual to perform work for the purposes of the contract; and (c) the individual engaged is deemed under clause 9 to be a worker employed by the principal— the amount of remuneration is the total amount paid or payable by the principal to the contractor under the contract, less— (d) the applicable prescribed percentage; or (e) if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour. (2) If subclause (1) applies, an amount paid or payable by a contractor within the meaning of subclause (1) to an individual engaged by the contractor to perform work for the principal within the meaning of subclause (1) is not remuneration. 11 Claims to be made against principal If an individual referred to in clause 9(1)(c)(iii) or (iv)— (a) is deemed under clause 9(5) to be a worker employed by the principal; and (b) makes a claim for compensation under this Act in relation to an injury arising out of, or in the course, of being so employed— the claim must be made against the principal within the meaning of clause 9. 12 Share farmers (1) If, under a contract entered into between an owner of land and a share farmer— (a) the share farmer is engaged by the owner and— (i) is entitled to receive as consideration a share of the income (being less than one third of that income) derived from the land whether in cash or in kind or partly in cash and partly in kind; or (ii) if the contract is in writing, the contract provides that the owner is liable to pay compensation under this Act in respect of any injury arising out of or in the course of any work carried out by the share farmer in the performance of the contract— (b) the share farmer is deemed to be a worker; and (c) the owner is deemed to be the employer of the share farmer. (2) If a share farmer is deemed to be a worker and an owner of land is deemed to be that share farmer's employer in respect of a particular contract, then only the cash paid or payable under the contract by the owner to the share farmer is deemed to be remuneration. (3) A share farmer engaged by an owner of land is not a worker unless subclause (1) applies. (4) A member of a share farmer's family who is employed by, or assists, the share farmer, whether for remuneration or otherwise, in the performance of the duties of the share farmer, whether pursuant to the contract between the share farmer and the owner of the land or otherwise, is not to be deemed to be a worker employed by the owner of the land by reason of the performance of such duties. (5) In this clause— ***income***, in relation to land, means the gross value of the production derived from the land; ***owner***, in relation to land, includes a person in possession of, or entitled to the receipt of, the rents and profits from the land; ***primary production*** means agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, cultivation of soils, gathering in of crops or rearing of livestock; ***share farmer*** means an individual who, under a contract with the owner of land used substantially for primary production— (a) is to perform work in relation to that land; and (b) is to be remunerated in whole or in part by receiving a share of the income, whether in cash or in kind, derived from that land. 13 Religious bodies and organisations (1) If, by Order in Council published in the Government Gazette at the request of a religious body or organisation specified in the Order as having made the request, the Governor in Council declares that— (a) persons within a class specified in the Order, who are not otherwise workers within the meaning of this Act, are workers of that body or organisation; and (b) the employer of those persons is the person specified in the Order as the employer— (c) the persons referred to in paragraph (a) are deemed to be workers; and (d) the person specified in paragraph (b) is deemed to be the employer of those workers. (2) If an Order in Council is made under this clause in relation to a religious body or organisation, such amounts as are determined by agreement between the Authority and the religious body or organisation are deemed to be remuneration. 14 Persons employed in the public sector (1) This Act applies to a person who— (a) is a responsible Minister of the Crown; or (b) is a member of the Legislative Council or the Legislative Assembly; or (c) holds an office as a member of a public entity or of the governing body of a public entity; or (d) holds a judicial office; or (e) is a non-judicial member of VCAT; or (f) is a public official within the meaning of the **Public Administration Act 2004**; or (g) is a bail justice; or Sch. 1 cl. 14(1)(h) substituted by No. 37/2014 s. 10(Sch. item 188.3). (h) is a member of Victoria Police personnel within the meaning of the **Victoria Police Act 2013**. (2) A person specified in subclause (1) is to be taken to be a worker. (3) Amounts paid or payable to a person specified in subclause (1) in respect of their employment, office or duties are deemed to be remuneration. (4) In this clause, ***public entity*** and ***public official*** have the same respective meanings as they have in the **Public Administration Act 2004**.